her right of dower, and she receives the gift in the will in lieu of dower.

This is an old doctrine, originating with Lord Cowper in Burridge v. Bradyl, 1 P. Wms. 127, adopted by Lord Hardwicke in Blower v. Morret, 2 Ves. Sr. 422, which has so extensively prevailed as never to have been dissented from, that we discover, either in the English or American cases. Its application was resisted by counsel in an early case (Davenhill v. Fletcher, Amb. 244), where the gift to the wife greatly exceeded in amount the value of the dower, the argument being placed on the great inadequacy of consideration; but the point was overruled, the answer to it being that the testator is the only and best judge of the price at which he is desirous to become the purchaser of the wife's right. Rop. Leg. *432.

The rule does not, however, apply, if the wife has no right of dower. Her right must be subsisting at the death of the testator. Otherwise she is not a purchaser. In such case she pays no consideration. Id. And the general rule does not prevail if the will clearly discloses that the testator intended that the gifts to his wife should not have a preference over other bequests. The burden will be on the executor to show, from the terms of the will, that a preference is forbidden. The presumption favors the widow's claim. The intention of the testator, as found in the will, is a part of the contract made with the widow, and, if she accepts the provisions of the will, she does so voluntarily, and abides the consequences.

The internal evidence of the will, in the present instance, does not repel, but favors, the widow's contention. It discloses that the testator, having no child, had great affection for his wife, providing in different ways in his bequests for her protection. The evidence is conclusive that he believed his estate would easily bear all the burdens placed by him upon it. He must have assumed that the annuity to his wife would be needed by her, to sustain the equipments of housekeeping given her, including the support of horses and carriages provided for her use. He makes the payment of his wife's annuity a prior claim to all other bequests. The very relation of husband and wife creates a strong presumption in her behalf, when we consider that, after the bounties to her are paid, distant relatives, if not strangers, are provided for.

We think that the will, as a whole, though not by express terms, by implication, indicates preference in the devises and bequests to the wife, and struggles to utter it. There is a clause in the will which, if standing alone, might seem to look in a contrary direction, and that is the declaration of the testator that the annuity is to be paid from the earnings of his individual and partnership property. We think the idea of the testator in this clause was that he was enlarging, rather than limiting, the funds out of which the annuity might be paid. He devotes for the purpose the earnings of all his properties. He expresses no limitation or condition. The gift is unconditional and ab

solute, although, as is often the case, he overestimates the sources of supply which were to assure its payment. The sources indicated turning out to be insufficient, others must be taken to supply the deficiency. It is a demonstrative legacy, not lost because of the nonexistence of the property specially pointed out as a means of satisfying it.

A case very like this strongly sustains this conclusion. Smith v. Fellows, 131 Mass. 20. The following additional references may be profitably consulted upon the general questions of the case: Heath v. Dendy, 1 Russ. 543; Wells v. Borwick, 17 Ch. Div. 798; Potter v. Brown, 11 R. I. 232; McLean v. Robertson, 126 Mass. 537; 3 Rom. Eq. Jur. § 1142, note, and cases; Schouler, Ex'rs, § 490, and cases in

SECTION 3.-THE RETAINER AND REFUNDING OF LEGACIES AND DISTRIBUTIVE SHARES

ANONYMOUS.

(High Court of Chancery, 1718. 1 P. Williams, 495.)

In this case (int. al.) it was said by Sir JOSEPH JEKYLL, Master of the Rolls, that as all legatees are on a deficiency of assets to be paid in proportion, so if the executor pays one of the legatees, yet the rest

22 See In re Wedmore [1907] 2 Ch. 277; In re Woodbury's Estate, 40 Misc. Rep. 143, 81 N. Y. Supp. 503 (1903). Compare In re Brown, 42 Misc. Rep. 444, 87 N. Y. Supp. 247 (1904). In In re Woodbury's Estate, supra, the court said: "The law is well settled that where a legacy is given in consideration of the relinquishment by the legatee of some subsisting right or interest-as to a creditor in satisfaction of a debt or to a wife in lieu of dower-such legacy is entitled to priority over general legacies, which are mere bounties, for in such cases the legatee stands in the situation of a purchaser and not a mere volunteer. Such is the rule, though the value of the legacy greatly exceeds the value of the rights relinquished."

In Farnam v. Bascom, 122 Mass. 282 (1877), the testatrix left no residue and insufficient property to pay the debts and satisfy the specific legacies and devises. It was held that the specific legacies and devises must be charged with the debts in proportion to their respective values, with the sole exception that testatrix's husband, by assenting to the will and relinquishing his right to one-half of the personal property, became a purchaser of the devise of a life estate to him; hence that life estate could be resorted to only after the other devises and the legacies were exhausted. But under the California statute land devised in satisfaction of a debt less in amount than the value of the devise must contribute to the payment of debts the same as other devised lands. In re Thayer's Estate, 142 Cal. 453, 76 Pac. 41 (1904). See, also, Matthews v. Targarona, 104 Md. 442, 65 Atl. 60 (1906). On contribution by legatees and devisees to make up a loss to some of their number caused by the widow electing to take her distributive share, see McGuire v. Luckey, 129 Iowa, 559, 105 N. W. 1004 (1906); Lewis v. Sedgwick, 223 Ill. 213, 79 N. E. 14 (1906); Kincaid v. Moore, 233 Ill. 584, 84 N. E. 633 (1908). On the effect of the death of the widow during the period of the right of election between dower and legacy in lieu of dower, see 2 L. R. A. (N. S.) 959, note.

shall make him refund in proportion; nay, if one of the legatees gets a decree for his legacy, and is paid, and afterwards a deficiency happens, the legatee who recovered shall refund notwithstanding, in imitation of the spiritual court where a legatee recovering his legacy is made to give security to refund in proportion if, etc.

But if the executor had at first enough to pay all the legacies, and afterwards by his wasting the assets occasions a deficiency, in such case the legatee who has recovered his legacy shall not be compelled to refund, but shall retain the advantage of his legal diligence, which the other legatees neglected by not bringing their suit in time; before the wasting by the executor; whereas if the other legatees had commenced their suit before such waste committed, they might have met with the like success, et vigilantibus non dormientibus jura subveniunt. This case I put to Mr. Vernon, who was of the same opinion.23

23 "There is a distinction, running through the cases, between an original deficiency of assets, and where the assets were sufficient, but had been wasted by the executor. In the former case, a legatee, who has been paid more than his proportion, under the deficiency, must refund; but in the latter case, he is not obliged to, for he has received no more than what was due to him, and the other legatees must look to the executor. The legatee, who has been paid, shall retain the advantage of his legal diligence. This rule was so laid down by Sir Joseph Jekyll, in 1 P. Wms. 495 (Anon.); but it does not apply where a creditor, instead of a legatee, is in question. On a waste by the executor. a legatee who has been paid, must refund in behalf of a creditor. Eyre, Chief Baron, in Hardwicke v. Mynd, 1 Anst. 112; Anon., 1 Vers. 162. But the authorities stop here; and the case of Walcott v. Hall, 2 Bro. 305, is such a clear and solemn adjudication on this point as to place it beyond all further controversy. There was a legacy, in that case, of £50 given to the plaintiff and payable at the age of 21, and the interest, in the meantime, to be applied to his maintenance. The residue of the personal estate was given to the defendants. The executor retained the legacy for the plaintiff, and paid over the residue to the residuary legatees, and then became a bankrupt. On a bill filed against the executor and the residuary legatees, Lord Kenyon, who was then Master of the Rolls, declared that the residuary legatees were not liable for they had received no more than they were entitled to, and the party must rest on the devastavit, and he dismissed the bill." Chancellor Kent, in 'Lupton v. Lupton, 2 Johns. Ch. (N. Y.) 614, 626, 627 (1817).

That even the residuary legatee need not refund when he has been paid out of a sufficiency of assets and there is a subsequent devastavit by the executor, see, also, Peterson v. Peterson, L. R. 3 Eq. 111 (1866); In re Lepine, [1892] 1 Ch. 210; Demere v. Scranton, 8 Ga. 43 (1850). But in Buffalo Trust Co. v. Leonard, 154 N. Y. 141, 145-147, 47 N. E. 966, 967 (1897), Gray, J., for the court said that if the residuary legatee, without having the estate settled up and the residue judicially ascertained, chose to demand and receive moneys from the executor, "he took them with all the risks attending such premature payment"; that while, as between general or specific legatees, the rule stated in the anonymous case, supra, was correct "where the case is between a general legatee and the residuary legatee, I can imagine of no defense to the latter's liability to refund in case of a premature payment of moneys, where the former is without fault in the matter, and I certainly know of no rule which would impute to an infant legatee the fault of his guardian. The residuary legatee is entitled to nothing until all the debts and other legacies are paid." Although the executor received into his possession moneys to an amount more than sufficient to pay the specific legacies and to leave a surplus greater than was in fact received by Leonard, the residuary legatee (154 N. Y. 143, 47 N. E. 966), although the executor was found to have been financially responsible from the time of his appointment up to about the time he absconded (154 N. Y. 144, 47 N. E. 966), and although the decision in Wal

DAVIS v. NEWMAN.

(Supreme Court of Appeals of Virginia, 1844. 2 Rob. 664, 40 Am. Dec. 764.) ALLEN, J. The testator, after making large specific bequests, directed the residue of his estate to be divided into six parts, of which the executor was to have one, and the remaining five were divided among his children and grandchildren. He owed no debts, and the executor proceeded to make sundry payments to the five legatees. The payments were voluntary; but, as it is alleged, were made under a mistake of fact as to the value of the assets. When the money was paid, all parties supposed that a bond given by Thomas Macon to the testator in his lifetime for a large amount, was good and would be collected; and the executor, in settling with the legatees, acted under that impression. The bond has turned out to be unavailing. Macon, though in the possession of an immense estate at the testator's death, was in truth greatly embarrassed, and subsequently gave deeds of trust which exhausted all his property. There being no creditors of the testator the executor now seeks to recover back for his own benefit the sums overpaid to the legatees.

In 1 Roper on Legacies, 315, it is said to be a rule in equity, to presume, when an executor voluntarily pays one or more legacies, that he has received sufficient assets to discharge the rest; and although the fact be otherwise, not to admit evidence to that effect. In such cases, therefore, the executor will be under the necessity to make up the deficiency with his own money, since he will not be permitted to institute. proceedings (except in particular instances) against the legatees so paid, to oblige them to refund. See, also, 2 Lomax's Digest, 173; 2 Williams on Ex'rs, 892; 1 Eq. Ca. Abr. 239. The cases referred to by Roper of Noel v. Robinson, 1 Vern. 94, Newman v. Barton, 2 Vern. 205, Coppin v. Coppin, 2 P. Wms. 292, and Orr v. Kaines, 2 Ves. Sr. 194, seem to me fully to sustain the position that in England, where the executor has made a voluntary payment, he cannot compel the legatee to refund: though there may be good reason to doubt whether they fully justify the position that such payment is an admission of assets sufficient to pay all the rest of the legatees, and that, though the fact may be otherwise, equity will not admit evidence to that effect. The authority for this proposition is the opinion of Sir John Strange, Master of the Rolls, in 2 Ves. Sr. 194. That opinion has been reviewed by President Tucker in Gallego's Ex'rs v. Attorney General, 3 Leigh, 488,

cott v. Hall, supra, was approved (154 N. Y. 146, 47 N. E. 967), the last paragraph of the opinion asserted that "in the present case, for the defendant Leonard, in the absence of a judicial settlement of the accounts of the executor, to have received a voluntary payment of moneys, was to subject himself to the same liability to refund as would exist if it was shown that he received the money with knowledge that the other legacies had not been paid or provided for." 154 N. Y. 147, 47 N. E. 967.

24 Part only of the opinion is given.

24 Am. Dec. 650, and he there shows, that Sir John Strange merely says such payment furnishes a presumption of the sufficiency of assets to pay the rest of the legacies, but does not say the presumption is conclusive. In the opinion of President Tucker, such presumptions, like all others, are liable to be rebutted, and although an executor may have been willing to encounter the hazard of paying one, it furnishes no reason for being compelled to pay the rest out of his own pocket.

I should not consider such a payment to one as conclusively establishing the executor's liability to all the rest, although the assets were deficient originally; because that would conflict with the spirit of our laws and adjudications. In England, the executor is personally bound if he fails to plead. A judgment against him on any plea except plene administravit, or a plea admitting assets to a sum certain and riens ultra, is conclusive on him that he has assets to satisfy such judgment. Our statute (1 R. C. p. 384, c. 104, § 36) has altered the law in this respect, and a failure to plead, or mispleading, subjects him to no personal responsibility. To hold that a voluntary payment to one legatee is an implied admission of assets sufficient to pay all, would be giving to such implied admission in pais an effect to which the statute has declared an admission on record shall not be entitled. For, by any other than the plea of plene administravit, he was held to admit assets. 1 Wms. Saund. 335, note 10.

But as between the executor and the legatee who has been paid, the cases are decisive that he shall not recover back the payment if voluntarily made. And no case has been cited which shews that such a bill has ever been sustained in England. It is certainly not shewn by those cited from 1 P. Wms. 495, and 2 P. Wms. 447. In Virginia the question has never arisen. Burnley v. Lambert, 1 Wash. 308, was a suit by the legatee to recover slaves bequeathed to him, and which had been seized and sold on an execution against the executor after he had assented to the legacy. Judge Pendleton, after deciding that the assent of the executor to the legacy vested the legal title in the legatee, which could not be divested at law by the creditor, remarks that the creditor is not without remedy; he may follow the assets in the hands of the legatee, or proceed against the executors, in which case the executors have their remedy in equity to compel the legatee to refund. It does not appear from the report, whether the debt was one of which the executor had no previous notice; and it was unnecessary for the court to enquire into that matter. If it was a debt of which he had no notice before paying away the assets to legatees, he had a right to compel the legatees to refund. Nelthrop v. Biscoe, 1 Ch. Cas. 135. And as the assets are always bound to the creditor, and he may pursue them in the hands of the legatee even though the testator's effects would have been sufficient to pay both debts and legacies (1 Vern. 162), there might be good reason for holding that where the executor paid a legacy with notice of a debt, believing the assets to be sufficient, and they proved insufficient to pay both, he should be permitted to compel the